CHAPTER VI
The Extension of Federal Control over Postroads
Federal Ownership of Railroads.—In an address at Indianapolis on May 30, 1907, President Roosevelt discussing the necessity for further congressional regulation of railway companies, declared that, “in so far as the common carriers also transport the mails, it is, in my opinion, probable that whether their business is or is not interstate, it is to the same extent subject to federal control, under that clause of the Constitution granting to the national government power to establish postroads, and therefore by necessary implication power to take all action necessary in order to keep them at the highest point of efficiency.”[403]
The placing of such a construction upon the postroads clause aroused a storm of criticism, but, in the main, President Roosevelt was correct in his assertion of congressional authority. Municipal streets used by mail carriers or wagons are postroads and federal control exists to the extent of insuring safe passage of the mail and prohibiting private competition; by the rural free delivery system, moreover, state wagon roads are under federal authority to the same extent. That much has been made evident by the preceding discussion.
As to common carriers between the states, congressional regulation has been very largely based upon the commerce clause of the Federal Constitution, and the transportation of the mails has been a secondary, not primary, ground to justify the authority exerted. This commercial power does not extend to intrastate undertakings, but if these were concerned with furnishing postal facilities they could be brought under federal control. This doctrine, however, should be carefully qualified so as not to assert a right in Congress to assume general supervision, for example, of municipal traction companies, an incidental function of which is to carry the mails. The control could be exerted only so far as was reasonably necessary to insure the safe, speedy, and unobstructed transportation of government property.
This control, as the Debs[404] case made clear, is, in the case of interstate carriers at least, and by parity of reasoning in the case of intrastate undertakings also, not confined to mere legislative rules, enforceable in the courts, but the executive power may remove obstructions to the carriage of the mails. The national government is charged “with the duty of keeping those highways of interstate commerce free from obstruction, for it has always been recognized as one of the powers and duties of a government to remove obstructions from the highways under its control.” On this power rests, in large part, at least, the act of October 1, 1888,[405] providing for arbitration between railroad companies and their employees and subsequent acts for the same purpose. The full power has not yet been exerted; it extends to the compulsory settlement of such disputes (subject to the limitations of the Thirteenth Amendment),[406] and to the enforcement by federal authority of such regulations as may be necessary to remove obstructions and insure the carriage of the mails without delay, even in the case of streets within a town and with reference to municipal traction companies.
It is no longer open to doubt that the federal government, under its right of eminent domain, upon the payment of adequate compensation judicially determined, may compel service from railroads by which existing terms for the carriage of the mails may have been deemed unsatisfactory. This may be done either by assuming the temporary management of the roads for such a purpose, or by enforcing criminal provisions against obstructing or delaying the mails. While such a power has not been exercised, it certainly exists.[407]
But the Senate Committee which in 1874 declared that the government could thus compel the transportation of the mails, went still further and maintained that Congress could “take absolutely, on paying just compensation therefor, without the consent either of the owner or of the state within which such road may be, any railroad, its rolling stock and equipments, within the United States for the public use and transportation over the same of the United States mails,”—an advanced position for this period when Congress had as yet attempted slight regulation of the railroads.
It should require but little argument, I think, to show that if Congress decides to nationalize the railways of the country it may constitutionally do so under its power to establish postroads. Federal charters to railroads and bridge companies have been pitched upon the postal, commercial, and war powers; they have granted rights of way through the states, immunity from taxation, powers of eminent domain, and the right of resort to the federal courts on the ground of federal citizenship. Congress has, moreover, the right of eminent domain even for patriotic purposes,—to preserve the Gettysburg battlefield,—a much more remote public purpose than that of establishing postal facilities under the specific authorization in the Constitution.[408]
In Osborn v. The Bank of the United States,[409] it was urged upon the Supreme Court that the bank was not an instrument of the government and a distinction was drawn between it and an agency for which provision was made in the Constitution. “The postoffice is established by the general government,” said counsel. “It is a public institution. The persons who perform its duties are public officers. No individual has or can acquire any property in it. For all services performed a compensation is paid out of the national treasury; and all money received upon account of its operations is public property.” The business “is of a public character and the charge of it expressly conferred upon Congress by the Constitution.”[410] This distinction between the public nature of postal facilities and the private character of much of the business done by the bank was urged to show that the latter was subject to taxation by the state.